By Lynn Foster and J. Cliff McKinney, II | 33 U. ARK. LITTLE ROCK L. REV. 199 (2010).
This article summarizes the general aspects of adverse possession and boundary by acquiescence in Arkansas, discusses the relationship between the two, focuses on problems with the applicable statutes, discusses inconsistencies in case law, and suggests amendments to the applicable statutes.
Adverse possession prevents the true owner from prevailing in a suit to recover his property after the claimant has adversely possessed the property for a period of years specified by statute. Boundary by acquiescence allows recognition of a boundary where there is a tacit agreement between the parties, recognition of the boundary for a long period of time, and a fixed line that is definite and certain. Many boundary dispute cases in Arkansas courts raise both theories of adverse possession and boundary by acquiescence. While the two theories may appear to be mutually exclusive, the authors note that the key to reconciling the two theories is the nature of hostility. The two theories are only mutually exclusive if wrongful intent is required for hostility. However, if the hostility requirement is met by mere acts that are inconsistent with permission and requires no subjective intent, both doctrines could be applied to a particular situation.
Color of title, payment of taxes, and a showing that the true owner has not paid taxes are statutory requirements for adverse possession in Arkansas. Under Arkansas code § 18-11-201, one who holds color of title and pays taxes for seven years of “unimproved and unenclosed” property is deemed to be in possession. Arkansas code § 18-11-103 confers color of title to a possessor of “wild and unimproved” property who has paid taxes long enough. The author asserts that the statute should be amended to apply constructive possession and color of title to “wile, unimproved and unenclosed” property.
The Arkansas statutes applicable to adverse possession divide property into two types: contiguous and noncontiguous. To assert an adverse possession claim for a contiguous tract, the claimant only needs to show color of title and taxes paid for the property that the claimant actually owns and not the contiguous tract that is the subject of the claim. That author asserts that the phrase “color of title” is misused in the statute and the statute should be amended to correct this flaw. The statute, as written, leads courts to find that claimants had “color of title” to their property where they instead have actual “title” to their property. The author states that the statute should be amended to require “title or color of title” to the property contiguous to the tract being claimed.
Boundary by acquiescence is replacing adverse possession as the “claim of choice” because it does not require proof of intent and has fewer elements that must be proven. Due to the confusion over whether mistaken intent is sufficient to prove adverse possession, Arkansas courts have increasingly turned to boundary by acquiescence in deciding boundary dispute cases. However, the author notes that the courts are slowly eroding the requirement for mutual recognition of the boundary. The authors contend this trend should be reversed and recommend that Arkansas amend its adverse possession laws to remove the subjective intent requirement. This would allow the courts to decide boundary dispute cases under the adverse possession doctrine without having to fall back on and erode the mutual agreement requirement of the doctrine of boundary by acquiescence.
